J. M. DILLON AND OTHERS, PLAINTIFFS IN ERROR,
v.
MIZELL, LIVE STOCK COMPANY, A CORPORATION, DEFENDANT IN ERROR
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The Florida Supreme Court held that a mortgagee who takes a mortgage from a conditional vendee before the expiration of the two-year statutory possession period has no priority over the conditional vendor, even if the mortgage is otherwise properly executed and recorded.
A mortgagee who takes a mortgage from a conditional vendee before expiration of the two-year statutory period acquires no rights against the conditional vendor beyond those possessed by the mortgagor. The conditional vendor retains priority over such a mortgagee.
“a mortgage executed by the conditional vendee in possession before the expiration of the statutory period, confers no rights upon the mortgagee as against the conditional vendor, not possessed by the mortgagor”
States the holding that mortgagees taking before the statutory period expires cannot acquire superior rights to conditional vendors
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Join FLexlaw to unlock all legal intelligenceJ. M. Dillon and others held a conditional sale of a mule dated January 10, 1910, with the conditional vendee retaining possession. On December 30, 19…
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Cockrell, J.
This case involves the priority as between a vendor under a conditional sale and a mortgagee, claiming a lien on the same mule, the conditional sale bearing date January 10, 1910, and the mortgage being given on the 30th day of December, 1911, the mule continuing in the possession of the conditional vendee and mortgagor, and is to be determined by the construction to' be placed upon Section 2516 of the General Statutes. The section, quoted at length in Hudnall v. Paine, 39 Fla. 67, text 71, 21 South. Rep. 791, renders void as to creditors and purchaser for a valuable consideration, conditional sales, not proved and recorded, after two years possession of the property in the conditional purchaser. In that case, this court declined to say whether the credit had to be extended after the expiration of the two years, the point being not then presented, yet quoted the case of Carew v. Love, 30 Ala. 577, as holding that “before a creditor can avail himself of the benefits of the act he must extend credit after the expiration of the time of possession designated in the statute.” That court also held in Brainard v. McDevitt, 21 Ala. 119, that a purchaser from the loanee could not acquire title until the expiration of the statutory period, nor could such purchaser tack his possession to that of his vendor to make up the requisite time. To the same effect is Beale v. Digges, 6 Gratt. (Va.) 582.
We think the analysis of the Alabama , statute, by Chief Justice Rice, speaking for the court in Carew v. Love, supra, conclusive upon the construction of the Florida statute, and that “creditors who claim under the statute, to subject one man’s property to the payment of another’s debt must bring themselves strictly within the statute. The statute in question does not confer that extraordi nary privilege on all classes of creditors of a loanee, but only on that class in whose favor a deal or liability was contracted after the loan had continued for at least three (two) years.”
In Hudnall v. Paine, supra, we held that after the expiration of two years, the lender or conditional vendor could protect himself only by record notice, as against creditors and purchasers, and now we hold that a mortgage executed by the conditional vendee in possession before the expiration of the statutory period, confers no rights upon the mortgagee as against the conditional vendor, not possessed by the mortgagor. Taking this view of the statute, it is unnecessary to say whether the conditional sale was properly proved for record and the judgment is affirmed.
Shackleford, C. J., and Taylor, Hocker, and Whitfield, J. J.. concur.
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Richardson Tractor Co. v. Square Deal Mach. & Supply Co., 149 So. 2d 388 (Fla. 2d DCA 1963)…ed by the common law is that they shall take precedence in the order of their creation,3 unless the one prior in point of [*391] time is extrinsically defective,4 or is -destroyed by some act of the holder.5 In Dillon v. Mizell Live Stock Co., 1913, 66 Fla. 425, 63 So. 824, the court held that, where a mule was sold on an unrecorded conditional sale contract to a vendee who subsequently mortgaged the mule before the vendee had been in possession for two years, the mortgagee’s rights were subordinate to tho…
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Rood v. Miami AIR Conditioning Co., 193 So. 2d 216 (Fla. 3d DCA 1966)…ning a three year provision rather than a two year period as provided in the Florida Statute, in Carew v. Love’s Adm’r, 30 Ala. 577, cited and approved by the Supreme Court of Florida, in Hudnall v. Paine, supra, and Dillon v. Mizell Live Stock Co., 66 Fla. 425, 63 So. 824, held, in a detinue action by an owner of a slave against defendants -who purchased the slave at an execution sale against a loanee who had possession of the slave under a loan from the owner, that the right or title of the lendor of per…
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Maas Bros., Inc. v. Guar. Fed. Sav. & Loan Ass'n, 180 So. 2d 195 (Fla. 2d DCA 1965)…this opinion. Insofar as the general rule is concerned, see Campbell Printing Press and Mfg. Co. v. Walker, 1886, 22 Fla. 412, 1 So. 59; Roof v. Chattanooga Wood Split Pulley Co., 1895, 36 Fla. 284, 18 So. 597; Dillon v. Mizell Live Stock Co., 1913, 66 Fla. 425, 63 So. 824; Lanier v. Chancy, 1918, 76 Fla. 443, 80 So. 312; and Richardson Tractor Co. v. Square Deal Machinery & Supply Co., Fla.App.1963, 149 So. 2d 388. As we have stated previously in this opinion, Florida has recognized two exceptions. There…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eliza Hudnall v. John B. Paine doing Bus. under the firm name of Merryday & Paine, 39 Fla. 67 (Fla. 1897)